Multiple agencies probe jail pepper-spraying, grand juries convene

County attorneys say they face ‘impossible choice’ in defending case.

Up to four agencies are investigating the 2015 pepper spraying of Amber Swink in a seven-point restraint chair by then Montgomery County Sheriff’s Office Sgt. Judith Sealey, court documents confirmed.

Now, attorneys defending against Swink’s federal civil lawsuit told a judge they would face an “impossible decision” if Sealey and other Montgomery County Jail leaders give depositions while still facing possible criminal charges.

“Since there currently is an ongoing federal investigation as well as a local investigation,” county attorneys Anne Jagielski and Joseph Saks wrote in a motion filed in Dayton’s U.S. District Court, “defendants are placed with an impossible decision: to invoke their Fifth Amendment privilege against self-incrimination and waive their opportunity to defend themselves in the civil lawsuit or waive the Fifth Amendment privilege and potentially face criminal charges based on their own testimony.”

Neither U.S. District Court Judge Walter Rice nor Magistrate Judge Michael Newman have ruled on the defendants’ motion to stay just the discovery portion of the case, according to the docket.

The motion also shows Montgomery County Sheriff Phil Plummer was subpoenaed to testify in a federal grand jury in Cincinnati in October 2016.

The document also confirmed that jail personnel have been investigated by U.S. Dept. of Justice’s civil rights division, the U.S. Attorneys’ Office, the Federal Bureau of Investigation and the Dayton police department.

“Due to the secrecy of criminal investigations, the specifics of any of the pending investigations are unknown,” county attorneys wrote, citing Plummer’s discussions with government officials. “It is apparent they are investigating Judith Sealey and the Sheriff’s Office as a whole for pending criminal charges.”

Sealey, who was promoted to captain early in 2016, was placed on administrative leave in October until the investigations were complete. Sheriff’s office representatives declined to comment for this article.

Last month, U.S. Attorney for the Southern District of Ohio Benjamin Glassman wouldn’t confirm nor deny a federal investigation into Sealey’s actions, but he did say his office coordinates and collaborates with law enforcement agencies to best use resources.

“That is, in my opinion, one of the most important roles of the United States Attorney’s Office,” Glassman said, “is that federal government is here to investigate other law enforcement agencies because we’re not a local player.”

The video of Sealey blasting Swink on Nov. 15, 2015 – for a second time that night in jail – only surfaced when attorney Doug Brannon filed the civil lawsuit. Brannon said he asked the sheriff’s office for the video and they couldn’t provide it.

The sheriff’s office has never been able to locate the video in its computer systems, and Plummer alleged it was stolen property.

“It also appears that the Department of Justice is investigating the alleged (destruction) of records relating to said incident, involving, as Plaintiff also alleges in her amended complaint, all of the Sheriff defendants,” the motion states.

The documents cites a March 6, 2017, affidavit from Plummer that says the FBI has interviewed jail supervisors and employees regarding electronic services.

Swink’s attorney said his client testified in January in a Montgomery County grand jury and that the process is continuing.

“At least some evidence has been presented to a grand jury,” Brannon said. “I don’t think the grand jury has reached an opinion or a verdict.”

Brannon said no one knows when indictments may come, but that as far as the defendants’ motion goes: “They’re trying to impede the civil case under the auspices of the criminal investigations.”

The scenario of a criminal probe holding up a civil case is similar in some ways to the federal wrongful death lawsuit brought by the family of John Crawford III against Beavercreek police and Walmart.

Rice repeatedly has allowed the delay of depositions of Beavercreek police officers Sean Williams and Sgt. David Darkow related to Crawford’s Aug. 5, 2014, death at the hands of police, citing the possibility of federal criminal charges. That federal investigation turned 30 months old Friday and has not been resolved.

“I do commit that … whatever the disposition,” Glassman said in February. “I will let you know publicly and promptly as soon as we have it.”

The Swink lawsuit is one of eight active civil actions filed against jail employees alleging misconduct.

County attorneys argued that Brannon’s case is not prejudiced by delaying sheriff’s office depositions, but the defense may suffer.

“The trier of fact in civil actions can draw a negative inference from a defendant failing to testify in a civil proceeding, as such an inference does not violate the Fifth Amendment or Due Process,” the attorneys wrote.

“This case has received national media attention, and therefore, the general public is likely interested in the outcome of the litigation. The public has a right to see that justice is served, and a stay in discovery would further ensure the integrity of the litigation.”

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